Both the Montana and federal constitutions apply when a person is charged with Driving Under the Influence. Just like in any other criminal prosecution, the state must prove all elements of the offense beyond a reasonable doubt. In a DUI case, this means that the prosecution must prove that the defendant:

was driving or in actual physical control of a vehicle;

was upon the “ways of this state open to the public” while under the influence of alcohol, drugs, or a combination of those two;

was within a specific city/county to establish venue and jurisdiction.

These elements must be proven by admissible evidence. In a Montana DUI charge, a videotape of the defendant at the time of the offense or soon after, even if no Miranda warnings were given, is admissible. However, a proper foundation needs to be established before its admission. A proper foundation requires:

Joshua Larson was charged with Driving Under the Influence in District Court in Missoula, Montana. He appealed his DUI/DWI conviction to the Montana Supreme Court, who affirmed the District Court.

While making a traffic stop in Missoula, officers witnessed Larson squeal his tires through an intersection. One of the officers followed Larson, observed that he had over-sized tires and no mud flaps, and initiated a traffic stop. Larson slurred his speech, which lead the to the officer requesting that he perform Field Sobriety Tests (FSTs). The tests produced a “sub-par” performance, leading the officer to request a breath test, wherein Mr. Larson blew a .023 (well below the legal limit). The officer asked to search Larson’s vehicle because he thought Larson might be under the influence of drugs. At that point Larson went to his truck and retrieved a bag of marijuana and a pipe which he admitted to smoking an hour before the stop.

Larson moved to suppress all evidence and statements made during the roadside investigation. He argued a lack of particularized suspicion to justify the stop, a lack of particularized suspicion to justify the FSTs, and that Miranda warnings were required prior to his retrieval of the drugs. The Montana District Court found sufficient particularized suspicion to justify the initial stop, and subsequent evidence justified the continued detention.

The Montana Supreme Court ruled that because Larson screeched his tires and revved his engine continually, while crossing a busy intersection, and had a mud-flap violation these two events, along with rational inferences, reasonably warranted the stop.

Likewise, the Montana Supreme Court ruled that the FST was warranted based on the particularized suspicion for the stop combined with the subsequently discovered evidence (like Larson’s slurred speech, and other factors in the opinion).

If an officer has stopped you (because he had a particularized suspicion) he will then watch for any indications that you are under the influence of alcohol or drugs. Assuming that there are some indications, the officer will then perform a Preliminary Screening Test. These tests come in a number of different formats, and carry a different amount of weight in making a determination of whether to perform an arrest for DUI.

We’ve discussed Montana field sobriety tests before. These are one of the preliminary screening tests that officers use to determine whether you have been driving under the influence of alcohol or drugs. A videotape of the tests is admissible even if no Miranda Warnings have been given. And successfully performing the field sobriety test does not mean you can’t still be arrested for DUI. Montana courts have ruled that the tests are not required to establish probable cause for an arrest and that probable cause may still be established with other evidence.

The horizontal gaze nystagmus (HGN) test is really a field sobriety test, but common enough to warrant its own discussion. This is when an officer holds something in front of your face and moves it left and right asking you to follow it with your eyes. The officer is trained to watch the way your eyes move to determine whether you are impaired by alcohol. Although it seems simple enough, properly administering the HGN test requires a great deal of specialized knowledge, and before the results of one can be admitted into court, the evidence must show that the arresting officer was properly trained to administer the test and that he was administering it in accordance with that training.

The Preliminary Breath Test (PBT) is a portable breathalyzer that officers use at the scene of a traffic stop to establish probable cause for DUI arrest in Montana. If the officer has a particularized suspicion that a driver has consumed alcohol, Montana law allows him to request a PBT. The law is similar to the implied consent law, in that a refusal to take the PBT may result in the suspension or revocation of the driver’s license or privilege to drive. However, the results of these tests are not substantive evidence of the amount of alcohol present in a person’s body. They just provide an estimate of alcohol concentration for the purpose of establishing probable cause.

As a kid, I wanted to be a lawyer – and for some reason decided it would be important for me to memorize the Miranda warning. So I paid close attention to Law & Order, Cops, and any other show where criminal suspects were “read their rights.” And here’s what I memorized:

You have the right to remain silent. Anything you say, can and will be used against you in the court of law. You have the right to an attorney. If you cannot afford an attorney, one will be appointed for you.

If you’d asked me at the time, I would have told you that these were magic words that had to be read to anyone who was arrested before the police could talk to them. Then I went to law school. And like so many things I thought about our legal system, law school turned it upside down. Here’s what I learned.

Miranda warnings only apply to “custodial interrogations.” So unless the police are detaining you and keeping you from leaving, they definitely do not need to read you your rights. Moreover, unless the officers want to use your statements against you at trial, they don’t need to read you your rights. Clients often tell me that they weren’t read their rights, thinking that this will mean an automatic win in their case. Nine times out of ten, it doesn’t mean a thing (but it can be important, so always mention something like this to your DUI attorney). Probably most shocking to the twelve-year-old-me who took all that time to memorize the speech, officers don’t need to give it exactly. Just something that conveys those general concepts.

Here’s the important part to remember: you ALWAYS have the right to remain silent. A recent US Supreme Court decision has stated that you need to speak up to remain silent, but you still have the right. This means that if you want to invoke your right to silence, you have to say so out loud. Just sitting there silently does NOT invoke your right to silence. So remember, even if the officers don’t read you your rights – you can request an attorney and shut your mouth. But you have to at least say that part out loud.

Paul Sullivan, Esq.

Paul is a partner at Measure, Sampsel, Sullivan & O'Brien, P.C. in Kalispell, MT. He is an ivy-league educated, DUI Lawyer specializing in defending Montanans accused of Driving Under the Influence of Drugs or Alcohol. He represents clients across Montana in misdemeanor and felony charges, and license hearings.
Call 752-6373 today for a free initial consultation.